A Window to the Public Eye: Tenth Circuit Holds Using a Pole Camera Does Not Violate the Fourth Amendment If It Captures Activities Performed in Public View

United States v. Hay, 95 F.4th 1304 (10th Cir. 2024).

Author: Alex Falk, Staff Editor

Issue: “Does the Fourth Amendment permit the government to surveil a home for months on end without a warrant?”

Answer: Yes.  Surveillance does not violate the Fourth Amendment as long as it captures activities that are within the public view.

Facts:  After a car accident, Bruce Hay was diagnosed with a psychological disorder that impairs mobility.  Hay then applied for and received disability benefits from the Department of Veterans Affairs (VA) after it determined that he was permanently disabled.  Years later, the VA received an anonymous tip that Hay was not permanently disabled.  The VA investigated Hay’s mobility in part by installing a pole camera near Hay’s home.  The camera filmed Hay’s home for more than two months.  The camera caught activities outside of Hay’s home and activities inside the home that could be seen through a window.  This footage was admitted at trial, and Hay was ultimately found guilty of multiple crimes.  On appeal, Hay contended that the VA’s use of the camera was an unreasonable search that violated the Fourth Amendment.

Discussion:  The Tenth Circuit held that the VA’s use of the camera did not violate the Fourth Amendment.  The Tenth Circuit noted that “reasonableness” is key to Fourth Amendment analyses and the United States Supreme Court has said that there is no “reasonable expectation of privacy” for activities that are performed in public view.  While the camera caught activities performed inside Hay’s home that were visible from a window, this did not violate the Fourth Amendment because anyone walking past his home could view these activities through the window. 

The Tenth Circuit previously held in United States v. Jackson that using pole cameras to record activities visible to the public does not violate the Fourth Amendment.  The Tenth Circuit rejected Hay’s argument that the United States Supreme Court’s decision in Carpenter v. United States abrogated Jackson.  While Carpenter involved the use of cell phone data that captured all a suspect’s movements and thus infringed on the suspect’s “reasonable expectation of privacy in the whole of his physical movements,” the pole camera only captured Hay’s movements outside Hay’s house. 

Key Authorities:  U.S. Const. amend. IV; Carpenter v. United States, 585 U.S. 296, 313 (2018) (holding that an individual has a “reasonable expectation of privacy in the whole of [their] physical movements”); California v. Ciraolo, 476 U.S. 207, 213 (1986) (explaining that police need not “shield their eyes when passing by a home on public thoroughfares”); United States v. Jackson, 213 F.3d 1269, 1280 (10th Cir.), vacated on other grounds, 531 U.S. 1033 (2000) (observing that the use of “cameras to record activity visible to the naked eye does not ordinarily violate the Fourth Amendment”).